JUDGMENT
Gowri Shankar, Member (Technical)
1. The appeals taken up for disposal, after waiving deposit, with the consent of both sides.
2. The two orders of the Commissioner impugned in these appeals before us demand duty from the appellant on the goods imported by it in terms of notification 203/92, on the ground that one of the conditions in the notification that modvat credit should not have been availed of in the manufacture of export product, had been contravened.
3. The contention of the representative of the appellant before us are these. So far as the order of the Commissioner impugned in the appeal C/114/01 is concerned, the export had not been made in terms of the advance licence and there is therefore no question of contravention of the conditions in the notification alleged against it. Insofar as the order impugned in the other appeal is concerned, modvat credit had not been availed of. The appellant did not have an opportunity to explain this to the Commissioner because no hearing was granted to it.
4. In the order impugned in the appeal 114/01, the Commissioner does in fact record the submission of the appellant that export had not taken place against the two advance licences out of the four in respect of which the notice was issued but thereafter proceeds to demand duty on the ground that the evidence of reversal of modvat credit had not been produced. The question of reversal of modvat credit would not arise on goods which have not been manufactured.
5. In these circumstances, we are of the view that the Commissioner should hear the appellant once again and properly consider the evidence that may be produced. The appeal is, therefore, allowed and the impugned order set aside. The Commissioner shall, after considering the submissions that the appellant’s representative says will be filed within two months from the receipt of this order, giving it an opportunity of hearing and pass orders in accordance with law.